United States District Court, M.D. Pennsylvania
December 7, 2005.
UNITED STATES OF AMERICA, Plaintiff
HARVEY HOLLAND, Defendant.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
The Defendant, Harvey Holland, filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. In a memorandum and order
dated February 18, 2005, we denied three of his claims and
scheduled a hearing to address the remaining claims. A hearing
was held on June 22, 2005. This memorandum addresses the
remainder of the Defendant's claims.
On June 6, 2002, following a jury trial, the Defendant was
convicted of distribution and possession with intent to
distribute fifty grams or more of crack cocaine in violation of
21 U.S.C. § 841 (a) (1) and 18 U.S.C. § 2 (Count II) and
conspiracy to distribute and possess with the intent to
distribute fifty grams of more of crack cocaine in violation of
21 U.S.C. § 846 (Count V). The Defendant was sentenced to
concurrent terms of life imprisonment on both counts,*fn1 five years supervised
release on all counts, an assessment of $200, and a fine in the
amount of $4000. Holland had also been charged with the murder of
Jason Harrigan. However, the jury was unable to reach a verdict
on that count and a mistrial was entered at the request of the
Holland appealed his conviction. The Defendant's appeal was
denied by the Third Circuit on September 30, 2003. United States
v. Holland, 76 Fed. Appx. 452 (3d Cir. 2003) (Holland I).
Holland petitioned for certiorari to the United States Supreme
Court and on January 12, 2004, certiorari was denied. Holland v.
United States, 540 U.S. 1135, 124 S. Ct. 1114, 157 L. Ed. 2d 942
(2004). On October 18, 2004, the Defendant initiated these § 2255
proceedings pro se. In response to our order under United States
v. Miller, 197 F.3d 644 (3d Cir. 1999), he moved to amend his
motion. We allowed him to amend and directed the Government to
file a response. The Government requested a hearing in order to
fully address the motion. In our February 18, 2005 order, we
addressed several of the Defendant's claims,*fn2 appointed
counsel for the Defendant, and scheduled a hearing on the
following claims: (1) that counsel was ineffective for failing to
conduct a pre-trial investigation; (2) that counsel was
ineffective for failing to interview, investigate, and
cross-examine witnesses; (3) that counsel was ineffective for failing to investigate the
pre-sentence report to correct mis-statements of fact; (4) that
the trial court abused its discretion at sentencing by assuming
the truthfulness of statements made at sentencing and that
counsel was ineffective for failing to address these
inconsistencies; (6) that counsel was ineffective for failure to
inform the Defendant of a possible plea bargain; (7) that counsel
was ineffective at trial and on appeal for failing to object to
errors made by the court when charging the jury, including the
failure of the court to properly record sidebars; and (8) that
counsel was ineffective at trial and on appeal for failing to
object to the Government's use of co-conspirators' guilty pleas
as substantive evidence of the Defendant's guilt.
A hearing was held on June 22, 2005. The parties have filed
post-trial briefs and the remainder of Defendant's claims are now
ripe for disposition.
III. Ineffective assistance of counsel
The majority of Holland's claims allege ineffective assistance
of counsel. These claims are governed by the standard set forth
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Strickland held that an ineffective
assistance of counsel claim requires the petitioner to show: (1)
that his counsel's performance fell below an objective standard
of reasonableness; and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88,
104 S. Ct. at 2064. The reasonableness of counsel's conduct must be
judged in light of the facts of the particular case at the time
of the event. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.
In analyzing that performance, the court must make every effort
"to eliminate the distorting effects of hindsight," and determine
whether "in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally
competent assistance." Id.
Once it is found that counsel's performance was deficient, the
court must determine if "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different." Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
A. Pre-trial investigation
The Defendant's first claim is that trial counsel was
ineffective for failing to conduct a pre-trial investigation.
Specifically, Holland argues that had counsel conducted a
thorough pre-trial investigation, he would have informed the jury
that the Defendant was incarcerated during the majority of the
drug conspiracy. The indictment charged Holland with conspiracy to distribute
and possess with the intent to distribute fifty grams or more of
crack cocaine and alleged that the conspiracy began on or about
January 1, 1997 and continued through the end of April 2001. The
Defendant was incarcerated in New Jersey from July 15, 1997 until
July 20, 1998. (Doc. 337, Hearing Tr., Def. Ex. 1). He further
asserts that he was arrested on September 12, 2000, and held
until his trial. However, the Defendant's pre-sentence report
indicates that he was arrested on September 15, 2000, September
24, 2000, January 4, 2001, February 21, 2001, and February 28,
2001, for various offenses committed during those months. As a
result, we cannot accept Holland's assertion that he was
continually incarcerated during the later part of the conspiracy.
At the hearing, Defendant's trial counsel testified that
although he was aware that Holland was incarcerated for certain
periods during the drug conspiracy, he did not want to present
testimony to the jury about burglaries and robberies because of
the murder charge. (Doc. 337, Hearing Tr. p. 29). He feared that
the jury may infer that those types of crimes were crimes of
violence and conclude that violence was consistent with Holland's
character. (Id.). He also testified that the evidence presented
at trial was not inconsistent with the theory that even though
the Defendant was incarcerated at some point during the
conspiracy, he still participated. (Id. at 29-30). Further,
since Holland was not going to testify, counsel's strategy was not to tell the jury
about the previous convictions. (Id. at 30-1).
The Defendant was incarcerated for a year at the beginning of
the conspiracy and then intermittently after September 12, 2000.
However, for a majority of the conspiracy, he was not in prison.
We fail to see what benefit he would have derived from the
presentation of an imperfect alibi to the jury. Given that
Holland was on trial for not only a drug conspiracy, but also a
murder, it was a reasonable tactical decision for trial counsel
to refrain from entering evidence that tended to show the
Defendant's propensity for violence.
Holland's next claim is that trial counsel was ineffective for
failing to interview and investigate potential witnesses and for
failing to cross-examine witnesses at trial. Specifically, the
Defendant contends that counsel should have cross-examined Angela
Jackson, Danny Hawkins, and Toyann Anderson. Counsel's trial
strategy was not to cross-examine a witness if they did not
identify Holland as a member of the drug conspiracy. (Doc. 337,
Hearing Tr. pp. 31-2). He did not want to give the prosecutor the
opportunity to elicit damaging testimony on redirect by giving
witnesses an opportunity to recall incidents that involved
Holland. (Id. at 32). Angela Jackson, a seventeen year-old girl, testified that
Holland had told her that he had killed "someone." (Doc. 267,
Trial Tr. p. 265). The Defendant requested that counsel question
her and was concerned when counsel moved away from him during her
testimony. (Doc. 337, Hearing Tr. pp. 11-2). Trial counsel
testified that Jackson had not previously been disclosed as a
witness and that the trial was the first time he had heard her
testimony. (Id. at 33). Counsel felt that Jackson's testimony
was out of place as it lacked foundation and context. (Id.).
Specifically, Jackson did not mention the Camelot Village
Apartments, where the murder with which Holland was charged
occurred, or who Holland had allegedly killed. (Id.). Counsel
testified that he moved away from his client during Jackson's
testimony because Holland became animated and he did not want the
jury to give her testimony more weight because of the Defendant's
reaction. (Id. at 34). He made the decision not to
cross-examine her because he did not want to give her an
opportunity to provide the jury with more details or context.
(Id.). Even if we assume that trial counsel was deficient in
failing to cross-examine Ms. Jackson, we cannot find that the
Defendant suffered prejudice as a result of her testimony. He was
not convicted of murdering Harrigan.
We further find that counsel's decision not to cross-examine
Hawkins or Anderson was reasonable. While the attorney for the
Defendant's co-defendant may have mention Holland's name in a question to Hawkins, Hawkins did not testify that he
purchased drugs from the Defendant. His testimony focused on
Holland's co-defendant. Anderson's testimony also focused on
Holland's co-defendant. Her testimony regarding the Defendant was
that on one trip to New York, Holland was present. While these
trips were for the purpose of obtaining drugs, Anderson only
mentioned that he was present and provided no other testimony
regarding Holland's involvement in the New York trips. Thus, it
was reasonable for trial counsel to avoid calling attention to
Holland or to offer the witnesses the opportunity to provide
testimony regarding the Defendant's involvement in the
C. Pre-sentence report
The Defendant maintains that trial counsel was ineffective for
failing to correct an error made by the probation officer in the
pre-sentence report. Specifically, he argues that in the
pre-sentence report, the probation officer incorrectly stated
that Holland's school records from the Elwyn Institute indicated
that he functioned in the borderline range of intelligence.
Holland maintains that his school records indicated the he
functioned in the borderline range of retardation and that the
probation officer substituted the word intelligence for the word
retardation. He contends that counsel was ineffective for failing
to investigate the information cited by the probation officer. At
the § 2255 hearing, trial counsel testified that he reviewed the pre-sentence report with Holland and, after
discussing the report with the Defendant, objected to the drug
quantities and holding the Defendant responsible for the murder
of Jason Harrigan. (Doc. 337, Hearing Tr. pp. 34-5).
A review of the Elwyn Institute records submitted by the
Defendant shows that staff at the institute referred to Holland's
functional level as either within the borderline range of
retardation or within the borderline range of intelligence. (Doc.
337, Hearing Tr., Def. Ex. 2). There does not appear to be any
difference between the classifications, other than word choice.
Thus, the probation officer did not substitute words as alleged
by the Defendant and trial counsel was not ineffective.
The Defendant also maintains that counsel was ineffective for
failing to correct other mis-statements in the pre-sentence
report and that we abused our discretion in relying on the
mis-statements at sentencing.*fn3 First, the petitioner
objects to the presence of uncharged acts in his pre-sentence
report. Specifically, he argues that the court could not rely on
the statements in the pre-sentence report regarding an uncharged
shooting and uncharged drug activity. He also contends that the
court mis-stated testimony during the sentencing hearing. "[I]nformation used as a basis for sentencing under the
Guidelines must have sufficient indicia of reliability to support
its probable accuracy." United States v. Warren, 186 F.3d 358,
365 (3d Cir. 1999) (quoting United States v. Miele,
989 F.2d 659, 664 (3d Cir. 1993)) (internal quotations omitted). Thus, so
long as the information is reliable, a district court can
consider a defendant's "background character, and conduct" at
sentencing as well as prior criminal activity. Id. at 364-5.
This reliability standard "should be applied rigorously." Id.
Holland argues that the court could not rely upon the sworn
testimony of Anthony Braxton that the Defendant had bragged to
him about shooting an individual named Ernie Stewart. He further
contends that reliance on the testimony of Mark Hughes regarding
the Defendant's involvement in selling drugs in 1986 is in error
because the year is outside the indictment. However, as noted
above, so long as the information is sufficiently reliable, the
court can rely upon it at sentencing.
At sentencing we did rely upon Braxton and Hughes' testimony in
coming to the conclusion that a preponderance of the evidence
existed to hold the Defendant responsible for Harrigan's murder.
(Doc. 272, Sentencing Tr. pp. 7-8). The testimony of both
witnesses was given under oath at trial and in composing the
pre-sentence report, the probation officer confirmed that the
Stewart shooting took place. The Defendant has provided no
evidence to show that the testimony of these two men is unreliable. As such, we cannot find that is was error for us to
rely upon the information at sentencing or that counsel was
ineffective for failing to object to it.
The Defendant also maintains that we mis-stated certain facts
at sentencing and that we could not use those mis-statements to
determine his sentence. We relied on the following evidence in
determining that a preponderance of the evidence existed to hold
Holland responsible for Harrigan's murder: (1) Braxton's
testimony regarding the Stewart murder; (2) Hughes testimony
regarding drug activity beginning in 1986; (3) Hughes testimony
that at some point in 2000 the Defendant robbed and shot another
dealer; (4) Jamine Jackson's testimony that Holland was known to
be violent and an enforcer; (5) Sharonda Posey's testimony that
she went to New York with the Defendant to get drugs; (6) Angela
Jackson's testimony that Holland had admitted killing someone;
and (7) Toyann Anderson's testimony that the Defendant implicated
himself in the murder. (Id. at 7-9). Holland contends that Posey
did not testify that he went to New York to purchase drugs with
her and that Anderson did not state that he had implicated
himself in Harrigan's murder.
We have reviewed the testimony in this case and have determined
that Holland is correct. Posey did not testify that she had gone
with the Defendant to New York to obtain drugs. It was Toyann
Anderson who gave this testimony. (Doc. 267, Hearing Tr. p. 345).
Further, it was Posey's testimony regarding the night of the murder that evidenced Holland's participation in
Harrigan's death, not Anderson's testimony. (Id. at 166-8).
Although we were mistaken in the identity of the witnesses who
gave the testimony, it was not inappropriate for us to rely upon
the substance of the testimony and, again, the Defendant has
provided no evidence to show that the information is unreliable.
D. Plea bargain
Holland contends that trial counsel failed to inform him of a
plea bargain offered by the Government. He argues that his
brother, co-defendant Jeffery Holland, was told that a plea offer
existed and that the Defendant could plead guilty and be
sentenced to twenty years in prison. (Doc. 337, Hearing Tr. p.
16). However, at the § 2255 hearing the Defendant produced no
evidence that such an offer existed. Trial counsel testified that
although he may have asked the prosecutor whether a plea
agreement would be considered, a plea offer was never made to the
Defendant. (Id. at 35-6). We find this testimony to be
credible. Since there is no evidence that a plea offer was
extended to the Defendant, we cannot find trial counsel
The Defendant maintains that the court erred in allowing two
sidebars to occur outside his presence and for failing to record
those sidebars. He contends that his counsel was ineffective for allowing the court to commit these errors and for
failing to raise these issues on appeal.
The Defendant claims that the lack of his presence at the two
sidebars, one during the original jury charge and one during the
supplemental charge, violates his rights under the Sixth
Amendment, his due process rights under the Fifth Amendment, and
Federal Rule of Criminal Procedure 43. He also asserts that the
failure to record these sidebars was a violation of the Court
Reporter Act, 28 U.S.C. § 753(b).
The Defendant's first argument is without merit. A defendant
does have a constitutional right to be present at every stage of
his trial. United States v. Toliver, 330 F.3d 607, 611 (3d Cir.
2003. This "right is also mandated by Fed.R.Crim.P 43(a)." Id.
However, "[t]he right to be present at every stage of trial does
not confer upon the defendant the right to be present at every
conference at which a matter pertinent to the case is discussed,
or even at every conference with the trial judge at which a
matter relative to the case is discussed." United States v.
Vasquez, 732 F.2d 846, 848 (11th Cir. 1984). The sidebars were
held to discuss issues of law regarding the jury instructions. In
such situations, it is not error to exclude a defendant from
participation. See United States v. Peterson, 385 F.3d 127, 138
(2d Cir. 2004) (finding that it was not an error to exclude
defendants from a defense attorney's meeting with the trial judge as the "meetings were more akin to hearings on an
issue of law to which a defendant has little to contribute.").
The Defendant's second argument relates to the Court Reporter
Act. "The Court Reporter Act applies to all proceedings in open
court, which includes sidebar conferences." United States v.
Sierra, 981 F.2d 123, 127 (3d Cir. 1992). "[F]ailure to comply
with the Court Reporter Act does not warrant a reversal without a
specific showing of prejudice. . . ." Id. at 125. Here, the
Defendant claims that he was prejudiced by the unrecorded
sidebars because he is unable to ascertain what was discussed at
them and that the result of these sidebars were prejudicial jury
With regard to the supplemental jury instruction, the Third
Circuit, in considering the appeal of Holland's co-defendant, has
found that such an omission was not prejudicial. United States
v. Holland, 75 Fed. Appx. 878, 881 (3d Cir. 2003) (Holland
II). We have examined the original charge given to the jury and
cannot find that the conspiracy instruction was prejudicial. See
United States v. Russell, 134 F.3d 171, 183 (3d Cir. 1998)
("Co-conspirators do not have to know all of the details, goals
or even the identity of other co-conspirators, to support the
finding of a single conspiracy."). Further, we note that the
Third Circuit found that the evidence supported the Defendant's
conspiracy conviction. Holland I, 76 Fed. Appx. at 454-5.
Therefore, we cannot find that the instruction as to willfulness was prejudicial. As such, we will deny the
Defendant's ineffectiveness claim as he cannot show that he was
prejudiced by a failure to record a side bar.
F. Co-conspirator's guilty pleas
Holland argues that the Government used co-conspirators' guilty
pleas as substantive evidence against him and that counsel was
ineffective for failing to object or ask the court for a limiting
instruction and for failing to raise the issue on appeal.
"[A]dmitting a [co-conspirator's] guilty plea can jeopardize
the fundamental fairness of a criminal trial because of the
likelihood that the jury may impute a [co-conspirator's] guilt to
the defendant." Government of the Virgin Islands v. Mujahid,
990 F.2d 111, 116 (3d Cir. 1993). There are times when it can
implicate that defendant's constitutional rights. Id. While a
guilty plea cannot be admitted as evidence of the defendant's
guilt, it can be used for other purposes, such as attacking a
witnesses credibility. Id. at 115. A judge, however, must
instruct the jury as to the limited purpose of the evidence.
Id. at 116. The instruction must highlight for the jury "how
the guilty plea evidence can and cannot be used." Id.
In the instant case, the Government referenced the guilty pleas
of two co-conspirators, Anthony Braxton and Sharonda Posey, in
its opening statement. During their testimony, these two
witnesses admitted that they had pled guilty to offenses related to the drug trafficking activity engaged in by the
Defendant. The jury was instructed that they could consider the
guilty pleas as follows:
Some of the witnesses who have testified in this case
have been convicted of crimes in the past. The
testimony of a witness may be discredited or
impeached by evidence showing that the witness has
been convicted of a felony. And a felony in Federal
Court is defined as a crime for which a person may
receive a prison sentence of more that one year.
Such convictions cannot be considered when deciding
on a defendant's guilt or innocence, but they may be
considered in determining the credibility of the
witness who has testified.
(Doc. 268, Trial Tr., Vol. 3, p. 528). This charge was sufficient
to inform the jury of the limited purpose for which the guilty
pleas could be considered. Mujahid, 990 F.2d at 116. Therefore,
we cannot find that the guilty pleas of others were used as
evidence against the Defendant. Further, counsel was not
ineffective for failing to request a limiting instruction, as one
was given, or for failing to raise the issue on appeal.
G. Other Claims
The Defendant's counsel for his § 2255 hearing has raised two
new issues in post-trial briefing to which the Government has
responded. We address each argument briefly. The Defendant argues that counsel was ineffective for failing
to inform the polygraph examiner that he has a low level of
intelligence. Holland participated in a polygraph examination to
determine if there may be grounds for a plea agreement. (Doc.
337, Hearing Tr. p. 36). He contends that since the examiner did
not know of his low intelligence level the examination could be
seriously flawed. However, as noted by the Government, this
examination had nothing to do with the jury verdict.
Additionally, the Defendant has provided no support for the
argument that counsel had to inform the examiner of his client's
level of intelligence before a valid polygraph examination could
be administered, or that the exam was, in fact, flawed.
Finally, Holland argues that trial counsel was ineffective for
failing to introduce his prior convictions to show that he had no
previous drug convictions. As previously discussed, however, it
was reasonable for counsel to keep evidence of Holland's prior
convictions from the jury so that they would not infer a
propensity for violence from them. Further, the fact that the
Defendant had not previously been arrested and convicted on drug
charges is not proof that he was not a participant in the drug
Based on the foregoing discussion, we will issue an order
denying Defendant's claims. The order will also deny a certificate of appealability, based on the analysis in this
memorandum. However, Defendant is advised that he has the right
for sixty (60) days to appeal our order denying his section 2255
motion, see 28 U.S.C. § 2253 (a), and that our denial of a
certificate of appealability does not prevent him from doing so,
as long as he also seeks a certificate of appealability from the
court of appeals. See Federal Rule of Appellate Procedure 22.
We will enter an appropriate order. ORDER
AND NOW, this 7th day of December, 2005, it is Ordered that:
1. Defendant's 2255 motion (Docs. 295, 301) is
2. Based on the accompanying memorandum, a
certificate of appealability is denied.
3. The Clerk of Court shall close this file.
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